Waterman, Marshall and Anderson, Circuit Judges.
After a three-day trial in the United States District Court for the Southern District of New York, before Judge Tyler and a jury, defendant was convicted on two counts of selling or giving away narcotics without obtaining a written order on an official form, 26 U.S.C. § 4705(a). We affirm the conviction.
Defendant claims that the trial judge erred in his charge to the jury on the issue of entrapment, first, by failing to instruct that unconscionable government conduct in promoting the acts for which defendant was prosecuted would nullify his guilt, and second, by failing to delimit the probative significance of defendant's prior criminal record. Because these claims were not raised at the trial, we shall notice them only if they demonstrate "plain errors or defects affecting substantial rights." Fed.R.Crim.P. 52(b).
First. Assuming that the government had initiated or set in motion the acts for which defendant is being prosecuted, the crucial issued posed by the defense of entrapment traditionally has been: "Was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence." United States v. Sherman, 200 F.2d 880, 882 (2 Cir. 1952). However, a recent reassessment of the entrapment defense has led two Courts of Appeals to inquire, alternatively, whether, in exposing the defendant's criminality, the government agents have acted in an offensive manner or lived up to reasonably decent civilized standards for the proper use of government power. Whiting v. United States, 321 F.2d 72, 76-77 (1 Cir.), cert. denied, 375 U.S. 884, 84 S. Ct. 158, 11 L. Ed. 2d 114 (1963); Accardi v. United States, 257 F.2d 168, 172-173 (5 Cir.), cert. denied, 358 U.S. 883, 79 S. Ct. 124, 3 L. Ed. 2d 112 (1958).
This elaboration of the defense of entrapment is mainly derived from a viewpoint thus far adopted by only a minority of the Supreme Court. See Sorrells v. United States, 287 U.S. 435, 453-459, 53 S. Ct. 210, 77 L. Ed. 413 (1932) (separate opinion of Roberts, Brandeis, and Stone, JJ.); Sherman v. United States, 356 U.S. 369, 378-385, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958) (concurring opinion of Frankfurter, Douglas, Harlan, and Brennan, JJ.). However, the current majority has expressly declined to disavow permanently this viewpoint which focuses on the conduct of the government. As the Supreme Court has said:
"The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the permissible stratagems involved in the detection and prevention of crime. Thus before the issue of entrapment can fairly be said to have been presented in a criminal prosecution there must have been at least some showing of the kind of conduct by government agents which may well have induced the accused to commit the crime charged." Lopez v. United States, 373 U.S. 427, 434-435, 83 S. Ct. 1381, 1385-1386, 10 L. Ed. 2d 462 (1963).
And see Sherman v. United States, supra 356 U.S. at 376-377, 78 S. Ct. 819. Moreover, the majority, too, has spoken of the entrapment defense in terms of "integrity of administration" and "objectionable police methods." Sorrells v. United States, supra 287 U.S. at 448-449, 53 S. Ct. 210; Sherman v. United States, supra 356 U.S. at 372, 78 S. Ct. 819.
Accordingly, in United States v. Pugliese (2 Cir. June 8, 1965), 346 F.2d 861, our court recently recognized that the alleged exertion of "undue pressure" or "improper pressure" by the government was a "principal point of dispute" and a "crucial issue" in the case. We take this opportunity to restate what was implicit in our former decision: assuming that the government has initiated or set in motion the acts of the defendant, the entrapment defense probes not only the predisposition of the defendant to commit the crime with which he is charged, but, alternatively, the conduct of the government in promoting the commission of the crime. In the absence of briefing by the parties, we shall also assume, solely for the purposes of this case, that the issue of the government's conduct is to be determined by the jury, just as is the issue of the defendant's predisposition; but see Whiting v. United States, supra 321 F.2d at 76 n. 8.
At the same time, we stated in United States v. Pugliese, supra at 861 of 346 F.2d, that when the trial judge instructs the jury that the defense of entrapment turns on a finding of "persuasion and representations" by the law enforcement officers, the jury is likely to understand him to mean the exertion of undue and improper pressure by the government. Here the trial judge went further; he spoke of defendant allegedly having been "unfairly induced or coerced by the conduct of the agents" and of the agents having "forced him or pushed him" to commit the crime. While this charge did not state with absolute clarity that government misconduct is an alternative basis of the entrapment defense, we hold it to have been sufficient in the absence of an objection at trial by defendant. See United States v. Kahaner, 317 F.2d 459, 477 (2 Cir.), cert. denied, 375 U.S. 835, 836, 84 S. Ct. 62, 11 L. Ed. 2d 65 (1963).
Second. After defendant himself had testified to his past criminal convictions for narcotics offenses and assault, the trial judge instructed the jury:
"You are not only to assay the testimony as to what transpired on the given days in question, but also any information which shows the type of man that Mr. Morrison was, * * * what Morrison had done previously, what his record was; all of that might have a very crucial bearing in your deliberations on this claim of entrapment of the defendant."
The trial judge also suggested that defendant must have been an "innocent person" in order to be entitled to acquittal on the ground of entrapment.
Defendant acknowledges that his prior criminal record was relevant to the issue of whether he was predisposed to do the acts for which he was prosecuted. United States v. Sherman, supra 200 F.2d at 882. He argues, however, citing Sherman v. United States, supra 356 U.S. at 375-376, 78 S. Ct. 819, that the trial judge erred in failing to warn the jury to discount past criminal offenses remote in time or in kind. He also contends, citing Hansford v. United States, 112 U.S.App.D.C. 359, 303 F.2d 219, 221-222 (1962), that the jury might have understood the trial ...